Amicus ApolloMedia Corporation is a multimedia technology company located in San Francisco, California. Its business is
entirely devoted to computer-mediated communications. It designs and constructs sites on the World Wide Web, and it
implements Internet systems for the delivery and management of information. Amicus uses computers, modems and telephone
lines to communicate its own content as well as the content published by its clients and by visitors to its web sites.

ApolloMedia's web sites and some of its clients' web sites often communicate strong positions using expression that may be
considered "indecent" by some people in some communities. Its annoy.com web site (http://www.annoy.com) enables
visitors to construct and send provocative email messages to various public officials and public figures, transmitting views on
controversial issues such as single sex marriage, censorship, health care and gays in the military. Amicus' online databases
contain material of social or political value, some of which is sexually explicit or uses vulgar language. Among ApolloMedia's
clients are the Service Members Legal Defense Network (assisting military service members who are investigated concerning
alleged homosexuality or who oppose sexual harassment), and the Hawaii Equal Rights Marriage Project (attempting to secure
the right to marriage for gay and lesbian couples).

ApolloMedia has filed an action in the Northern District of California (ApolloMedia Corporation v. Reno, No. C-97-0346
MMC), challenging the constitutionality of the provision of the Communications Decency Act (CDA), 47 U.S.C.
§223(a)(1)(A)(ii), that makes criminal any indecent computer communication with intent to annoy. The Court's resolution
of indecent speech issues in the instant case, under different CDA provisions (§§223(a)(1)(B)(ii) and (d)(1)(B)), may affect
certain issues in ApolloMedia's action.

Amicus Bay Area Lawyers for Individual Freedom (BALIF) is a minority bar association comprised of over 500 lesbian, gay
and bisexual members of the Bay Area legal community. Founded in 1980, BALIF promotes the professional interests of its
members and the legal interests of the gay, lesbian and bisexual community at large.

BALIF frequently appears as amicus curiae in cases in which it can provide perspective that will inform a court's decision on a
matter of broad public importance. BALIF believes this to be such a case. The speech of BALIF's members, their clients and
lesbian, gay and bisexual Californians in general is restricted by the CDA. They routinely use computer-mediated forms of
communication. BALIF itself maintains a web site (http://www.balif.org), with links to a variety of other sites and organizations
of interest to BALIF members, including Gay.Net. Because the CDA targets sexual speech, and because BALIF is identified
in part by its members' sexual orientation, the CDA's attempt to outlaw indecent speech threatens the full and frank
discussion of matters of great concern to BALIF. Indeed, BALIF is aware that the very concept of homosexuality is
considered indecent to some people in some communities, and the CDA therefore poses a particular threat to the speech of
BALIF and the gay, lesbian and bisexual community it represents.

The parties have consented to the filing of this brief, and amici have lodged letters of consent with the Clerk.

1. The federal government's power to regulate interstate commerce does not confer on it a "compelling interest" in restricting
the speech of ordinary citizens using computers. Any federal interest in policing sexual morality is attenuated. It is further
attenuated, compared to its power over goverment licensed broadcasters, by the nature of the Internet medium, the most
democratic ever invented. The CDA supplants the authority of parents and the states by banning speech that some parents
affirmatively wish their children to have access to (e.g., information about avoiding sexually transmitted diseases) or are willing
to trust their children with. Speech is made criminal and banned for everyone if it is deemed "patently offensive" for five-year
olds. The government's alternative argument, that it has a compelling interest in making sure that people are not deterred from
using the Internet fails in light of the reality that the Internet is flourishing and Americans are flocking to it, and there is simply no
need for coercive federal criminal intervention.

2. The CDA exempts intrastate communications. It is practically unenforceable against communications originating abroad,
which are a substantial portion of sexually explicit communications. The CDA's formal and practical underinclusiveness means
that it does not effectively prohibit many if not most "indecent" communications. Because the CDA's speech restrictions do not
effectively serve the government's asserted purpose in shielding children from such communications, they violate the First
Amendment.

3. Section 223(a)(1)(B)(ii) criminalizes "indecent" speech but does not define it. "Indecency" has no meaning sufficiently
intelligible to make its prohibition criminally enforceable. The government's attempt to rescue the statute by relying on a
committee report to supply the missing definition violates settled canons of statutory interpretation and due process
requirements of fair notice. The prohibition is impermissibly vague for a criminal statute.

4. As construed by the government, the CDA uses only one part of the three-part test of Miller v. California, 413 U.S. 15, 24
(1973), to make criminal speech that is not legally obscene. This violates the First Amendment because it punishes speech with
societal value and because, when the "patently offensive" prohibition is uncoupled from the prurient-appeal and no-societal
value rules for obscene speech, the law is impermissibly vague. The wholly uncertain applicability of the CDA defenses actually
compounds the vagueness of the statute. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048-49 (1991). In addition,
using "community standards" to judge a non-geographic medium like the Internet means that speech offensive to the least
tolerant community in the nation is banned from all communities. The subjective "patently offensive" standard, standing alone,
invites both discriminatory enforcement and unseemly government surveillance of the online communications of ordinary
innocent citizens.

The Court has never upheld a criminal statute outlawing either indecent or patently offensive speech that is not legally
obscene. [1]/ The provisions of the CDA at issue in this case punish pure speech as a felony.

The CDA is not a sensitive tool for regulating unprotected speech. See Speiser v. Randall, 357 U.S. 513, 525 (1958).
Instead, it is a clumsy and defective piece of legislation that builds a censorship edifice on the flimsiest of foundations: it
prohibits unknowable kinds and quantities of speech (indecent) not defined by the statute; the government's proposed
definition of the forbidden speech, borrowed from a committee report, was in turn borrowed from the FCC's definition used to
regulate government licensees in a very different medium (broadcast); and the FCC's definition in turn borrowed one part of
the three-part test for obscene matter established by Miller v. California, 413 U.S. 15 (1973). At each step in the
construction of this censorship structure, the CDA's unconstitutionality has been compounded.

I. THE FEDERAL GOVERNMENT'S POWER TO REGULATE INTERSTATE COMMERCE DOES NOT
CONFER ON IT A COMPELLING INTEREST IN REGULATING INDECENT SPEECH BY ORDINARY
CITIZENS USING COMPUTERS

The primary battleground on which this case has been fought is whether the CDA is narrowly tailored. But the CDA's
attempt at regulation of the speech of ordinary citizens requires a determination, first, whether the federal government has both
the constitutional power and a compelling interest in regulating citizen speech (not the speech of federally-licensed
broadcasters) using computers. The requisite power and interest cannot simply be assumed. E.g., First National Bank of
Boston v. Bellotti, 435 U.S. 765, 786 (1988) (burden on government); id. at 788-89 (asserted interests not supported by
record or legislative findings). Only if, after consideration of all the relevant facts, the Court finds the federal interest to be
compelling need it decide whether the CDA is narrowly tailored to serve the interest.

Congress has only the legislative powers enumerated in the Constitution. All other powers are reserved, under the Tenth
Amendment, to the states and the people. The federal government needs to be reminded on occasion that it, unlike the states,
has no general police power. In particular, the domain of sexual morality is pre-eminently a matter of state concern. Roth v.
United States, 354 U.S. 476, 502 (1957)(Harlan, J., dissenting in part). Interests protected by statutes on sexual morality are
primarily entrusted to the care, not of the federal government, but of the states. Congress has no substantive power over
sexual morality. Id. at 504.

As the Court held in Roth, Congressional power to regulate obscene matter in the mails is based on its express power over the
postal system under Article I, section 8, clause 7 of the Constitution. 354 U.S. at 492-93. Even this plenary power over the
postal system does not justify Congressional attempts to restrict unpopular speech transmitted by mail. E.g., Bolger v. Young's
Drug Products Corp., 463 U.S. 60 (1983) (invalidating federal statute that prohibited unsolicited mail advertising of
contraceptives); Lamont v. Postmaster General, 381 U.S. 301 (1965) (invalidating requirement that persons receiving
Communist propaganda had to request delivery of such mail). Congress has no express power over other forms of
communication, including the Internet, and therefore any regulatory power must be implied from its power over interstate
commerce. See National Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943) (Communications Act of 1934
provision a proper exercise of Congressional power over interstate commerce). [2]/

The federal commerce power, however, is not unlimited. United States v. Lopez, 115 S. Ct. 1624 (1995). If under Lopez
Congress lacks power under the Commerce Clause to protect children from the very serious problem of violence associated
with guns in schools, it is hard to see why its interest in shielding them from private online speech should be considered
compelling. As Justice Harlan pointed out, Not only is the federal interest in protecting the Nation against pornography
attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do. Roth, supra, 354
U. S. at 505. The deadening uniformity of national censorship is one of the dangers. Id.

The attenuated federal interest in regulating sexual morality is further attenuated by the nature of the online medium. As
Justice Frankfurter pointed out in NBC with regard to the broadcast medium, Unlike other modes of expression, radio
inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject
to governmental regulation. Because it cannot be used by all, some who wish to use it must be denied. 319 U.S. at 226;
accord, Red Lion, 395 U.S. at 386-401. But the Internet can be used by all. Unlike other modes of expression, there is no
scarcity of frequencies or facilities that could justify government content regulation. Nor is it intrusive in the sense that an
unwanted communication may enter the home unbidden and confront unsuspecting children. Cf. FCC v. Pacifica
Foundation, 438 U.S. 726, 748 (1978). Nor is it a medium uniquely accessible to children. Id. at 749. Receiving any
computer-mediated communication requires both affirmative effort and significantly more sophistication than turning on a
television set or picking up a telephone.

The government asserts that the indecency problem on the Internet is much more pronounced than it is on broadcast
stations. U.S. Br. at 29. According to the government, this is because the Internet operates without the intervention of
editors, network censors, or market disincentives. Id. In other words, according to the government, because ordinary citizens
can communicate with each other directly, not as the passive recipients of programming directed at them by powerful
corporations, the government is entitled to step in and make criminal the citizen speech that it disfavors. The perverse result is
that the more democratic the medium -- in the sense of being free of corporate censors and commercial disincentives --
the greater the government's right to regulate the medium. If the First Amendment means anything, this argument must be
rejected out of hand.

Finally, any federal interest is attenuated because the CDA officiously meddles in what is first and foremost the domain of
parents, not government. It overrides parents' wishes and criminalizes speech that some parents affirmatively wish their children
to have access to, e.g., information about how to avoid sexually transmitted diseases. It criminalizes speech that some parents
are willing to trust their children with. It makes felonies speech that would be perfectly appropriate for 17-year old minors
simply because it might be deemed patently offensive in some communities for 5-year old children. (The CDA makes no
distinction between older minors and toddlers, banning speech if it is available to any minor.) Further, the CDA ignores the
fact that parents may easily install software on their computers that prevents their children from gaining access to material that
the parents do object to. ACLU v. Reno, 929 F. Supp. at 838-42. In short, the CDA supplants parental control with
governmental control over the information that children have access to, and it supplants state authority with federal authority
over sexual morality. It does so without hearings, findings or any evidence of what speech might cause what harm to what
minors.

As Judge Dalzell noted, the asserted interest in protecting children is as dangerous as it is compelling because it has no
limiting principle. ACLU v. Reno, 929 F. Supp. at 882. It would, for example, authorize Congress to enact a Newspaper
Decency Act,  id., and, in the name of protecting children, to restrict wide varieties of speech disfavored by paternalistic
legislators.

The Court should conclude that Congress does not in fact have a compelling interest in shielding all children, of whatever age
and regardless of their parents' wishes, from sexual speech on the Internet. The Court's decision in Ginsberg v. New York,
390 U.S. 629 (1968), cannot carry the freight that the government attempts to load on it. The government contends, first, that
what it calls the CDA's specific child and transmission provisions are essentially no different from the New York law in
Ginsberg. U.S. Br. at 24. The Court in Ginsberg rejected the argument of a commercial seller of pornography that minors had
the right to see the same materials available for sale to adults. 390 U.S. at 636-37. Ginsberg involved a state law enacted in
the state's police power, not a federal commerce regulation. The Court specifically noted that the validity of the law rested on
the state's power "to control the conduct of children" (id. at 638-39), a power that the federal government does not have.
Justice Stewart, concurring, said that the law was valid on the same basis that the states may deny minors the right to marry or
to vote. Id. at 649-50.

Furthermore, the state statute in Ginsberg embodied a legislative approach that Congress expressly and deliberately rejected in
the CDA. The New York law precisely defined types of materials that were deemed by the state to be harmful to minors.
390 U.S. at 645-47. For example, the state statute contained detailed definitions of nudity, sexual conduct, sexual excitement,
or sado-masochistic abuse,[3]/ which, when the material met the three-part test of Miller as obscene for minors, were
deemed to be harmful to minors. Congress, however, considered, but rejected the so-called `harmful to minors' standard.
See Ginsberg v. New York . . .  Conf. Report at 188, reprinted in 1996 U.S. Code Congressional Adm. News, at 202.
Oddly, it is the very approach specifically rejected by Congress that is now relied upon by the government. [4]/

Finally, now that the case is in this Court, the government asserts -- without any supporting evidence or congressional finding
-- a new compelling interest in protecting the First Amendment interests of all Americans, not just children, in using the
Internet. U.S. Br. At 31. The argument is that the Internet's potential will be lost if people are unwilling to avail themselves
of its benefits because they do not want their children exposed to patently offensive material. Id. at 30. There is, however, no
evidence to support the suggestion that substantial numbers of people are foregoing the communicative benefits of the Internet
for fear of exposing their children to indecent material. In fact, all the evidence shows that the Internet is flourishing and
American participation in it is growing by leaps and bounds. Households, schools and businesses are flocking to it in ever
increasing numbers. It ain't broke and does not need government fixin' to make it work for the people. [5]/ If any parents
are sufficiently concerned that they might be deterred from using the Internet, they have it within their power -- with no need
for coercive government criminal intervention -- to monitor their children's use and to install the readily available software that
screens out undesired material.

Furthermore, recognizing a compelling government interest in making sure that a communications medium is family friendly
(U.S. Br. at 7) has disturbing implications. Such an interest could as easily be asserted with regard to indecent speech in
public parks or leaflets passed out on street corners. If the federal government were given free rein to ensure family friendly
communications media, it could regulate depictions of violence, use of profanity and almost any other content disfavored by
legislators. The simple truth is that criminalizing the speech of ordinary citizens in the name of making sure that all speech on a
medium is acceptable to the majority -- who may otherwise desert the medium -- is inconsistent with the very purpose of the
First Amendment.

II. BECAUSE THE CDA EXEMPTS INTRASTATE COMMUNICATIONS AND IS NOT PRACTICALLY
ENFORCEABLE AGAINST COMMUNICATIONS ORIGINATING ABROAD, THE GOVERNMENT'S
ASSERTED INTEREST IS NOT IN FACT SERVED BY ITS SPEECH RESTRICTIONS

Sections 223(a)(1) and (d)(1) of the CDA apply only to interstate and foreign communications. These are defined terms in
the Communications Act. 47 U.S.C. §153 (e) and (f). The definition of interstate communication is a common sense one,
meaning a communication or transmission from any State...to any other State. SeeSprint Corp. v. Evans, 846 F. Supp.
1497, 1500-01 (M.D. Ala. 1994).

Because Congress elected in the CDA not to make criminal intrastate computer communications, the Act exempts innumerable
communications that may well include indecent or patently offensive material. For example, a chat room or email sexual
proposition from a pedophile to a child in the same town is not covered by the Act. Nor are cross-town facsimile
transmissions. Similarly, intrastate email among employees in a business, or students at a university, is not covered. Many other
online communications of all kinds, so long as they do not cross state lines, are simply not covered.

In Florida Star v. B.J.F., 491 U.S. 524 (1989), the Court invalidated a Florida law prohibiting disclosure of rape victims'
names in any instrument of mass communication. The Court held that the law's facial underinclusiveness undermined the
state's claim that it was in fact accomplishing its asserted purpose of protecting the victims' privacy. The law did not prohibit
the spread by other means of the identities of victims of sexual offenses, and did not cover communications by individuals (like
the backyard gossip) at all. 491 U.S. at 540. The Court held that without more careful and inclusive precautions against
alternative forms of dissemination, we cannot conclude that Florida's selective ban on publication by the mass media
satisfactorily accomplishes its stated purpose. Justice Scalia stated the defect in the law concisely in his concurring opinion, in
terms directly applicable here: the speech restriction is invalid when it leaves appreciable damage to that supposedly vital
interest unprohibited. 491 U.S. at 542.

Similarly, in Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the Court invalidated a law that made it a crime for a
newspaper (but not electronic media) to publish the names of juvenile offenders. The Court held that the law failed to
accomplish its stated purpose. 443 U.S. at 105. As now Chief Justice Rehnquist remarked, it is difficult to take very
seriously [the government's] asserted need to preserve the anonymity of its youthful offenders when it permits other, equally, if
not more, effective means of mass communication to distribute this information without fear of punishment. Id. at 104-05
(Rehnquist, J., concurring); accord, First National Bank of Boston v. Bellotti, supra, 435 U.S. at 792-93 (statute invalid
because both underinclusive and overinclusive in dealing with asserted interests).

In addition to exempting intrastate communications, the CDA is prevented from effectively serving the interest in protecting
children by the fact that a large percentage, perhaps 40% or more, of content on the Internet originates outside the United
States. ACLU v. Reno, 929 F. Supp. at 848; see Shea v. Reno, 930 F. Supp. 916, 931 (S.D.N.Y. 1996). Perhaps thirty
percent of the sexually explicit material currently available on the Internet originates in foreign countries. Shea, 930 F. Supp.
at 931. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornography from New
York City, and residents of Amsterdam have little incentive to comply with the CDA. ACLU, 929 F. Supp. at 882-83. Thus,
for this reason alone, the CDA will almost certainly fail to accomplish the Government's interest in shielding children from
pornography on the Internet. Id. at 882. The CDA will not reach a significant percentage of the sexually explicit material
currently available. Shea, 930 F. Supp. at 941.

(The extent to which the quixotic CDA is ineffective is emphasized by the twin realities that minors are in fact exposed to
indecent speech in many more direct and pervasive ways than through computers, and shutting down even some of those
ways through measures like a Newspaper Decency Act, a Novel Decency Act, a Village Green (or Schoolyard, or
Lockerroom) Decency Act or a Postal Decency Act would be palpably unconstitutional. See ACLU, 929 F. Supp. at 882.)

Because the CDA is facially underinclusive in that it does not reach intrastate communications, and because it cannot
practically prevent foreign materials from reaching minors in this country, it does not effectively accomplish the government's
asserted goal of shielding minors from indecent and patently offensive speech. Therefore, it is not effective in serving a
compelling government interest, and for this reason violates the First Amendment.

Section 223(a)(1)(B)(ii) prohibits communicating any indecent speech (including mere words) to anyone under age 18.
Here, the CDA overinclusively bans indecent speech by telephone, fax machine or email, to a 17-year-old if it would be
indecent for a toddler, even outlawing communications that the parents of the minor recipient know of and permit (or,
indeed, send).

The provision does not define indecent. Indecent can mean many things to different people. For example, it might include
depictions or descriptions of violence, profanity or blasphemy, all of which are considered indecent by some people. The
word is defined in the dictionary as 1. offensive to good taste; unseemly. 2. offensive to public morals; immodest; indecent
exposure -- See Synonyms at improper. American Heritage Dictionary of the English Language, 668 (1st ed. 1969). The
synonyms are improper, unbecoming, unseemly, indelicate, indecent, indecorous.  Id. at 662.

Amici have found only one legislative definition of indecent in the federal Codes. 18 U.S.C. § 1461, dealing with obscene
materials in the mails, provides that: The term indecent as used in this section includes matter of a character tending to incite
arson, murder, or assassination. In United States v. Smith, 11 Fed. 663 (C.C.Ky. 1882), in quashing an information under
this statute, the court ruled that indecent means immodest, impure, not coarse, or unbecoming, or even profane.

Given these diverse definitions, indecent has no meaning sufficiently intelligible or coherent to make its prohibition criminally
enforceable. The government, however, relying not on anything in the statute itself but on a conference report, says that
indecent in subsection (a)(1)(B)(ii) (speech communicated to a minor via telecommunications device) means patently
offensive sexual speech as referred to in subsection (d)(1)(B)(speech available to a minor via an interactive computer
service). The conference report states that The conferees intend that the term indecency (and the rendition of the definition of
that term in new section 502) has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and
Sable Communications of California v. FCC, 492 U.S. 115 (1989).... Conf. Report at 188, reprinted in 1996 U.S. Code
Congressional & Administrative News, at 201.

Even if the intent of the few conferees were relevant for the purpose of supplying a missing definition in a criminal statute, the
report is inaccurate in stating that indecency is defined in section 502; it is not. In fact, the CDA does not even use the noun
indecency. Further, contrary to the conference report, indecency under the CDA cannot have the same meaning as in
Pacifica; the FCC's definition that the Court upheld for administrative (not criminal) purposes referred to patently offensive
language as measured by contemporary community standards for the broadcast medium . . . at times of the day when there is
a reasonable risk that children may be in the audience. 438 U.S. at 732 (emphasis added). This cannot be applied to online
communication, which is asynchronous.

The government's attempt to salvage subsection (a)'s criminalization of undefined indecent communications by reference to a
different term in a different provision of the statute must be rejected. If Congress uses language in one section of a statute but
omits it in another, it is presumed that Congress acted intentionally and intended different meanings. Gozlon-Peretz v. United
States, 498 U.S. 395, 404 (1991); Russello v. United States, 464 U.S. 16, 23 (1983). Further, to read indecent as
redundant of patently offensive is to rob it of independent meaning in violation of the rule that a statute must, if possible, be
construed in such fashion that every word has some operative effect. United States v. Nordic Village, 503 U.S. 30, 36
(1992) (emphasis added); Bowsher v. Merck & Co., 460 U.S. 824, 833 (1983).

More fundamentally, it is entirely inappropriate for the government to attempt to validate a criminal statute, which requires fair
notice of precisely what is proscribed, by relying on a conference report. Congress is elected to enact statutes rather than
point to cases, and unrestrained use of legislative history by reference to committee reports is no substitute for valid
legislation. Blanchard v. Bergeron, 489 U.S. 87, 89 (1989)(Scalia, J., concurring); Wisconsin Public Intervenor v. Mortier,
501 U.S. 597, 616, 619-22 (1991)(Scalia, J., concurring); see generally, Note, Why Learned Hand Would Never Consult
Legislative History Today, 105 Harv. L.Rev. 1005 (1992). Reliance on a committee report citing a case to supply a statutory
term crucial to its validity is particularly inappropriate. As anyone familiar with modern-day drafting of congressional
committee reports is well aware, the references to the cases were inserted, at best by a committee staff member on his or her
own initiative, and at worst by a committee staff member at the suggestion of a lawyer-lobbyist. . . Blanchard v. Bergeron,
supra, 489 U.S. at 98 (Scalia, J., concurring).

Amici recognize that one judge in ACLU v. Reno and the court in Shea v. Reno accepted the government's argument that the
conference report supplied the missing definition of indecent, and that indecent means patently offensive . . . .  But neither
gave any consideration to the rules of statutory construction cited above. More importantly, the authorities on which they relied
involved only civil administrative uses of indecent as equivalent to patently offensive -- FCC regulations and decisions,
Pacifica and the television cases following Pacifica. Since none of those authorities involved criminal statutes, the Court should
not sanction their incorporation to salvage a defective criminal law. See generally Pope v. Illinois, 481 U.S. 497, 507-19
(1987)(Stevens, J., dissenting). [6]/ The requisites for valid criminal statutes -- adequate notice and precision to discourage
arbitrary enforcement -- rule out such legislation by indirection.

IV. THE COURT SHOULD REJECT ANY ATTEMPT TO BORROW ONE-THIRD OF THE MILLER V.
CALIFORNIA TEST FOR THE PURPOSE OF CRIMINALIZING NON-OBSCENE SPEECH

Even if, contrary to amici's contention in point III, § 223(a)'s prohibition of "indecent" speech is read to mean "patently
offensive" sexual speech as prohibited by § 223(d)(1)(B), the patently offensive proscription is itself unconstitutional. It bears
emphasis again that the Court has never upheld a criminal statute outlawing "patently offensive" speech that is not legally
"obscene" under the test of Miller v. California, 413 U.S. 15, 24 (1973).

The Court struggled in the 1950's and 1960's with whether obscene speech could be either meaningfully defined or punished
criminally. E.g., Roth v. United States, 354 U.S. 476 (1957); Jacobellis v. Ohio, 378 U.S. 184, 191 (1964); id. at 197
(Stewart, J.: I know it when I see it). In Miller the Court attempted to resolve those questions by establishing a three-part
test for obscenity regulation: (1) the work must appeal to the prurient interest; (2) its depictions of sexual acts must be
patently offensive as judged by community standards; and (3) the work must lack serious literary, artistic, political or
scientific value. 413 U.S. at 24.

Several members of the Court have expressed their dissatisfaction with the Miller test even as to obscenity. See, e.g., Pope v.
Illinois, 481 U.S. 497, 505-06 (1987) (Scalia, J.) (need for "reexamination" of Miller, since whether material has literary or
artistic value is matter of taste and "De gustibus non est disputandum"); id. at 516 & n. 11 (Stevens, J.) (criminal prosecution
for obscenity involving consenting adults should not be permitted); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 84 (1973)
(Brennan, J., dissenting); cf. Alexander v. United States, 509 U.S. 544, 573 (1993) (Kennedy, J., dissenting, with Blackmun,
Stevens and Souter, JJ.) (obscenity separated from protected expression only by a `dim and uncertain line').[7]/

Each of the three parts of the Miller test must be met to criminalize even obscene speech. Cf. Pope v . Illinois, 481 U.S 497
(1987) (societal value part not to be judged by community standards, which govern offensiveness and prurient parts); id. at
507-08 (Stevens, J., dissenting: prosecutor must prove each of these three elements beyond a reasonable doubt). If the
CDA borrows only one-third of the Miller guidelines to outlaw patently offensive speech on the Internet, it violates the First
Amendment because it criminally punishes valuable speech and because, when it is uncoupled from the prurient-appeal and
no-societal-value rules for obscene speech, the subjective patently offensive test becomes impermissibly vague for use in a
criminal statute. In addition, judging offensiveness by geographic community standards means that Internet speech is barred
everywhere if it is offensive in the least tolerant community in the nation, thus denying the speech to the vast majority of
Americans to whom it is not offensive.

A. Uncoupling patently offensive from the Miller obscenity test makes the law impermissibly overbroad,
subjective and vague for criminal purposes

As construed by the government, the CDA borrows only the patently offensive part of the Miller test. It completely omits the
other two parts: that the material's appeal be to the "prurient" interest and that the material not have "serious literary, artistic,
political or scientific value." Accordingly, the CDA prohibits speech that, by definition, does not appeal to the prurient interest
and that does have serious literary, artistic, political or scientific value. In other words, not only does the CDA criminalize a
vast range of speech, but it forbids speech that may have important societal value. It is a statute of unprecedented sweep,
Shea, 930 F. Supp. at 922, the most sweeping restriction on the speech of ordinary citizens that Congress has ever attempted.

Examples of patently offensive sexual speech that are protected by the First Amendment can be found in the decisions of this
Court. See, e.g., Cohen v. California, 403 U.S. 15 (1971), and Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Cohen's
Fuck the Draft jacket, worn to court in full view of all spectators, including children, was held to be protected even though
highly offensive to most citizens. Hustler Magazine's mean-spirited accusation that Rev. Falwell had sex with his mother in an
outhouse was deemed patently offensive by this Court. 485 U.S. at 50. Even though the parody was gross and repugnant in
the eyes of most (id.), and found by a jury to be an outrageous and intentional infliction of emotional harm, it was held
protected. Both examples obviously would be deemed patently offensive in some communities and, if the communications
had been done by computer rather than in public or print, would be felonies under the CDA.

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), is another example of speech held protected by this Court but
subject to criminal punishment under the CDA. Bolger invalidated a statute prohibiting unsolicited mail advertising of
contraceptives. The advertising -- Plain Talk About Venereal Disease and Condoms and Human Sexuality (463 U.S. at
62, n.4) -- might well have been considered patently offensive by some recipients, especially those with religious scruples
about contraceptives. The Court rejected the government's argument that the statute was needed to keep unsolicited sexual
material out of the hands of children. Id. at 73-74. But such material, if communicated via the Internet, likely would be a felony
in some communities. [8]/

Moreover, "patently offensive" is an inherently subjective standard. The speech must be offensive to someone. This loose and
variable standard is wholly inappropriate for a criminal statute of general application enforceable throughout the nation. As
Chief Justice Rehnquist wrote for the Court in Hustler Magazine, supra, `Outrageousness' in the area of political and social
discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes
or views, or perhaps on the basis of their dislike of a particular expression. 485 U.S. at 55.

Nor is the CDA's inherent subjectivity cured by the supposed statutory defenses set forth in 47 U.S.C. §223(e)(5). The
defenses are not in fact available to most speakers. Shea, 930 F. Supp. at 942-48; ACLU, 929 F. Supp. at 846, 849, 856,
859. Moreover, their wholly indeterminable applicability to a few speakers (who could theoretically -- but not practicably --
take some good faith step to screen the age of recipients) actually compounds the vagueness of the statute. SeeGentile v.
State Bar of Nevada, 501 U.S. 1030,1048-49 (1991)(safe harbor provision of disciplinary rule misled attorney into
believing he had defense to vague rule).

The government's reliance on Pacifica is completely misplaced. The court below properly rejected the notion that Pacifica --
involving administrative regulation of a government-licensed broadcaster in a medium that is uniquely accessible to children
and can "confront" listeners without warning (438 U.S. at 748) -- validates a criminal statute governing a completely different
medium. Pacifica involved only a mild declaratory order (not even a reprimand). 438 U.S. at 730. Moreover, in sharp contrast
to the initiation of criminal proceedings under the CDA by any of hundreds of federal prosecutors who wish to do so, the FCC
stated in Pacifica that it would not impose even an administrative sanction without warning. Id. at 743. [9]/

The Court's discussion of borderline examples of cable television broadcasts in Denver Area Educ. Telecommunications
Consortium v. FCC, 116 S. Ct. 2374, 2396-97 (1996), is instructive here. The Court invalidated a provision of the 1992
cable television act that merely permitted cable operators to refuse to carry patently offensive programming on public access
channels. In doing so, the Court referred to certain borderline examples as to which people's judgment may differ, perhaps
acceptable in some communities but not others. The Court mentioned depiction of a self-help gynecological examination,
nude scenes from a movie and a safe sex program. 116 S. Ct. at 2396-97. The Court concluded that it was difficult to
see how such borderline examples could show a compelling need, nationally, to protect children from significantly harmful
materials. Amici's point is that the CDA, worse than the much less restrictive provisions that the Court struck down in
Denver, makes criminal the very kinds of borderline examples that the Court recognized might not be acceptable in some
communities. [10]/ The effect of the CDA is to ban even the borderline examples from all communities because they are
unacceptable in some very intolerant ones, even though they are generally acceptable around the nation.

The government stretches too far when it invents the concept of cyberzoning and says the CDA operates like the adult
theater ordinances in City of Renton v. Playtime Threatres, Inc., 475 U.S. 41 (1986), and Young v. American Mini Theatres,
Inc., 427 U.S. 50 (1976). The CDA does not channel materials to adult areas of cyberspace (U.S. Br. at 32); it makes
criminal speech that is protected among adults. Moreover, the CDA is not a time, place and manner regulation aimed at
containing the secondary effects of speech. Unlike City of Renton and Young, where the cities sought to control crime and
protect retail business and property values through geographic zoning of theaters, the CDA criminalizes speech because of its
content. As the Court remarked in City of Renton, [i]t is th[e] secondary effect which these zoning ordinances attempt to
avoid, not the dissemination of `offensive' speech. 475 U.S. at 49, quoting Young, 427 U.S. at 71, n. 34 (emphasis added).
Here, it is precisely the offensive speech that is prohibited.

B. Using geographic community standards for a non-geographic medium means that speech offensive in any
community is banned from all communities

Miller's definition of obscene speech that enjoys no First Amendment protection attempted to minimize subjectivity by
requiring that offensiveness be judged by "community standards." These standards have come to be geographic. Miller itself
said that it was permissible to use the State of California as the relevant "community." 413 U.S. at 30-31. Other courts have
approved the use of "community standards" of a county (e.g., United States v. Bagnell, 679 F.2d 826, 836-37 (11th Cir.
1982), cert. denied, 460 U.S. 1047 (1983)), and a federal district (e.g., United States v. Thomas, 74 F.3d 701, 710-11 (6th
Cir.), cert. denied, 117 S. Ct. 74 (1996)). But the Internet is a non-geographic medium, and online communications can and
do circulate throughout the nation and the world, with the speaker commonly having no idea who might read his or her words
or in what geographic community readers might live. [11]/ In other words, the assumption of Miller that "patent offensiveness"
will be judged by the standards of a given geographic community, where the defendant intends to sell the offending film or
book, simply does not work with the Internet. Applying geographic community standards to speech that is "available"
everywhere reduces all speech to what is acceptable in the least tolerant community a prosecutor can find.

Amici recognize that Sable Communications v. FCC, 492 U.S. 115 (1989), rejected the argument of commercial
"dial-a-porn" operators that they would be compelled to tailor their messages to the least tolerant community. 492 U.S. at
124. The argument was that Miller was violated because the telephone statute assertedly created an "impermissible national
standard." The Court cited its cases upholding prohibitions against mailing or broadcasting obscene materials into certain
communities. The Court said that a commercial telephone pornographer was "free to tailor its messages, on a selective basis, if
it so chooses, to the communities it chooses to serve, and that there was no constitutional impediment to imposing the costs of
screening the locale of incoming calls on the commercial operator. 492 U.S. at 125 (emphasis added). This reasoning cannot
be applied here because the vast majority of Internet speakers (1) are not commercial enterprises, (2) do not choose to
serve any geographic community, and (3) have no means of "screening" who might see their speech. As Judge Dalzell pointed
out, unlike other media, there is no technologically feasible way for an Internet speaker to limit the geographical scope of his
speech (even if he wanted to), or to `implement[ ] a system for screening the locale of incoming' requests. ACLU, 929 F.
Supp. at 878, quoting Sable. [12]/

Miller was decided on the assumption that the Court was dealing with relatively fixed "works," like movies, books and
magazines, that the publisher intends to sell in a given geographic community. Miller was decided two decades before the
Internet emerged. The Court plainly did not anticipate its application to interactive speech, the kinds of computer-mediated
human conversations that the Internet medium makes possible and that know no geographic boundaries.

The Conference Report on the CDA states that a different section of the law, §223(f)(2), which preempts inconsistent state
and local regulations, is intended to establish a uniform national standard of content regulation for a national, and indeed a
global, medium . . . Conf. Report at 191, reprinted at 1996 U.S. Code Congressional & Administrative News, at 204. If this
opaque reference was meant to establish national standards rather than local community standards for judging patently
offensive speech, this is an odd and highly questionable legislative technique. See authorities cited in point III, supra. It also is
contrary to Miller's rejection of a national standard. 413 U.S. at 30 (our Nation is simply too big and diverse for this Court
reasonably to expect that such standards could be articulated for all 50 States in a single formulation, even assuming the
prerequisite consensus exists).

When uncoupled from Miller's context of hard-core, prurient sexual works with no societal value, the patently offensive
standard becomes an engine for the suppression of speech that prosecutors subjectively find objectionable. It cannot stand
alone as the test for whether speech is criminal. Whatever its validity as part of the FCC's administrative regulation of
commercial broadcasters who voluntarily seek government licenses and submit to such regulations, it cannot be used in a
criminal statute applied to ordinary citizens who converse on the Internet. Its vagueness is compounded by the government's
inability to identify the relevant community by whose standards the material will be judged. ACLU v. Reno, 929 F. Supp. at
856 (Sloviter, J.); id. at 863 (Buckwalter, J.).

Nor is it irrelevant that enforcement of this criminal statute inevitably will involve widespread eavesdropping or other
participation by government agents and vigilante groups in the online conversations of ordinary citizens. That is, unlike
complaint-activated monitoring of public broadcasts by the FCC, enforcement of the CDA necessarily will involve reading,
snooping on and recording the electronic communications of unsuspecting and wholly innocent citizens. For example, when a
vigilante group tips law enforcement that a certain news group involves the patently offensive discussion of abortion, safe sex
or erotic literature, Big Brother government will log on and listen to the conversation, recording at will. When a prosecutor
thinks he or she can get a conviction in a particular community intolerant of such discussion, the conversation can be
downloaded -- with a mouse click -- to that venue. Hundreds of persons' thoughts and ideas will become evidence in a
criminal prosecution. This will happen even if the patently offensive material in fact has no impact whatever on the
community whose standards will govern and would not even have been downloaded there except for the purpose of
prosecution.[13]/ Thus, not only does the CDA's vagueness invite arbitrary and discriminatory enforcement (see Grayned v.
City of Rockford, supra, 408 U.S. at 108-09), but the enforcement will include unseemly government surveillance of the
private online conversations of ordinary innocent people.

In short, the CDA is not rescued by borrowing from Pacifica which in turn borrowed part of Miller. Unlike with broadcast,
cable and telephone, where there is a long tradition of significant federal regulation, including the need to apply for government
licenses to make commercial use of these media, there is no overriding federal interest in policing the content of citizen speech
on the Internet. See point I, supra. The drafters of the CDA, in their haste to suppress images and words that they find
offensive, blundered far beyond the scope of any legitimate federal interest. Until Congress specifies, in clear terms that give
fair notice to speakers, what harm is caused to what minors by what speech, it cannot make patently offensive speech a
criminal offense.

Attorneys for ApolloMedia Corporation and
Bay Area Lawyers for Individual Freedom, as amici curiae

February, 1997

Footnotes

[1]. In Denver Area Educ. Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996), the Court considered a
non-criminal provision of the 1992 cable television act that was entirely permissive, authorizing, but not requiring, cable
operators to refuse to carry patently offensive sexual material. 116 S. Ct. at 2387. A plurality of the Court found that the
provision was not vague. Id. at 2390. Not only did Denver involve a non-criminal statute, but the Court emphasized the
special characteristics of the medium, noting that cable television is essentially the same as broadcast in being a pervasive
presence, uniquely accessible to children and capable of confronting them with little or no warning. Computer-mediated
communication, for the many reasons set forth in the findings of fact below, ACLU v. Reno, 929 F. Supp. 824, 830-49 (E.D.
Pa. 1996), is very different from broadcast. One of those reasons -- the ability of consumers to block communications that
they do not want their children to see -- was emphasized by the Court in Denver in striking down the provision of the 1992
cable act requiring operators to scramble and block sexual material. 116 S. Ct. at 2392-93. The provision invalidated by the
Court is more closely analogous to the CDA provisions at issue in this case than the permissive provision upheld by the Court.

[2]. The provisions at issue in this case are not limited to commercial speakers. For example, they are far broader than the
prohibition of obscenity on the telephone, where the statute, 47 U.S.C. § 223(b)(1), is limited to transmission of obscenity for
commercial purposes. Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989). The Court has upheld non-criminal
regulation of federally licensed commercial operators of broadcast and cable television outlets. E.g., Red Lion v. FCC, 395
U.S. 367 (1969); Denver Area Educ. Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996). But the CDA
reaches far beyond commercial uses to regulate the speech of ordinary citizens using computers.

[3]. Typical of the detail in the definitions was nudity: the showing of the human male or female genitals, pubic area or
buttocks with less then a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any
portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. 390 U.S. at
645.

[4]. Nor did Ginsberg approve the prohibition of "indecent" material. It was an obscenity case, in which satisfying all three
parts of the "three-pronged test" (390 U.S. at 635) was required by the statute. The Court approved the statute's "variable
obscenity" approach, so that the material could be deemed obscene if it had prurient appeal for persons under 17, if it was
patently offensive with respect to what was suitable for minors and if it was "utterly without redeeming social importance for
minors. Id. at 632. In sharp contrast, the CDA makes speech criminal if it meets only one part of the three-part test for
obscenity. See point IV, infra.

[5]. At a minimum, the government has not carried its burden of proof that substantial numbers of people in fact are afraid to
use the Internet because they do not wish their children to see indecent material. SeeTurner Broadcasting Sys. v. FCC, 114
S. Ct. 2445, 2470 (1994) (government failed to prove that statute met actual need to preserve free broadcast).

[6]. Justice Stevens was the author of Pacifica. His opinion in Pope explains at length why Pacifica-type administrative or civil
speech regulation is entirely inappropriate for criminal prohibitions.

[8]. In another context, Senator Helms declared that written safe sex educational materials were obscene. 133 Cong. Rec.
S14203 (daily ed. Oct. 14, 1987). If a prominent legislator believes that Bolger-type materials are obscene, it is not
farfetched to suggest that some prosecutors and juries will find them patently offensive.

[10]. A wide variety of similar examples of speech with societal value that the CDA makes criminal was identified below.
ACLU, 829 F. Supp. at 852, 855, 871-72.

[11]. An individual sending a message that will be retransmitted by a mail exploder program has no way of knowing the
e-mail addresses of other subscribers. Shea, 930 F. Supp. at 927. [O]ne who posts an article to a news group has no way
of knowing who will choose to retrieve it. Id at 928; ACLU, 929 F. Supp. at 845, 854, 878.

[12]. In United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 S. Ct. 74 (1996), the Sixth Circuit upheld an
obscenity conviction involving pictures transmitted by computer from California to Memphis, Tennessee, rejecting the
argument that it should "adopt a new definition of 'community' for use in obscenity prosecutions involving electronic bulletin
boards." 74 F.3d at 711. The court found "no need" to reconsider this aspect of the Miller test because the defendants in
Thomas in fact "knew" that they were sending the pictures to a specific recipient in Tennessee who had submitted an
application and been issued a password before requesting that the particular pictures be sent to Tennessee. Id. at 72.

[13]. In United States v. Thomas, supra, the only person to download the defendant's electronic bulletin board's materials in
Tennessee was the postal inspector who initiated the prosecution. 74 F.3d at 705. The defendants in that case knew that they
were transmitting the material to Tennessee, because they required an application and password for any transmission. Id. at
705, 710, 711. But in most CDA cases, the unsuspecting speaker will have no idea where his or her communications are
going, or to whom. See note 11, supra.

Reno v. ACLU - Brief of ApolloMedia Corporation and BALIF as Amici Curiae, In Support of Affirmance